UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER V. NASSAR: THE SUPREME COURT S HEADS THE EMPLOYER WINS, TAILS THE EMPLOYEE LOSES DECISION

UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER V. NASSAR: THE SUPREME COURT S HEADS THE EMPLOYER WINS, TAILS THE EMPLOYEE LOSES DECISION INTRODUCTION In June 2013, the U.S. Supreme Court dealt two blows to employees and the protections Congress guaranteed them under Title VII of the Civil Rights Act of 1964 by taking employer-friendly stances on fundamental questions regarding the interpretation and application of Title VII. 1 In fact, the Supreme Court s recent employment law jurisprudence has led Justice Ginsburg to label it as a heads the employer wins, tails the employee loses analysis. 2 In one of the recent decisions, University of Texas Southwestern Medical Center v. Nassar, the focus of this Note, the Supreme Court enforced a but-for causation standard for retaliation claims under Title VII, even after recognizing that Title VII status-based discrimination claims claims involving direct discrimination based upon a person s race, color, religion, sex, or national origin enjoy a lesser motivating-factor causation standard. 3 Interestingly, the Supreme Court s decision rested in part upon the text and structure of a 1991 amendment to Title VII an amendment that Congress itself labeled as an attempt to broaden protection under Title VII. 4 Instead, the Court construed the amendment in a way that actually restricts the protection intended for victims of retaliation. 5 Moreover, the Supreme Court disregarded established precedent that has both defined retaliation as just another form of status-based discrimination and determined that it should be treated as such. 6 Thus, the Supreme Court effectively created a distinction between different 1. See Univ. of Tex. S.W. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013); Vance v. Ball State Univ., 133 S. Ct. 2434, 2454 (2013). 2. See Nassar, 133 S. Ct. at 2545 (Ginsburg, J., dissenting). 3. Id. at 2528 (majority opinion). Status-based discrimination is direct discrimination in hiring, firing, promotion, and other employment decisions on the basis of an individual s protected status, i.e., discrimination on the basis of race, color, religion, sex, or national origin. See 42 U.S.C. 2000e-2(a) (2006). Retaliation is discrimination on account of an employee having opposed, complained of, or sought remedies for, unlawful workplace discrimination. See id. 2000e-3(a). These provisions will be discussed later in this Note. See infra Part I. 4. H.R. REP. NO. 102 40, pt. II, at 2 4 (1991). See infra Part III. 5. See Nassar, 133 S. Ct. at 2547 (Ginsburg, J., dissenting). 6. See infra Part I. 897

898 SAINT LOUIS UNIVERSITY LAW JOURNAL [Vol. 59:897 types of discrimination and made it harder for employees to get relief for retaliatory efforts of their employers. The effects of this decision are immediate and catastrophic, especially for trial courts left with the mess of trying to properly instruct juries in Title VII cases in which the plaintiff alleges both status-based discrimination and retaliation (a common occurrence). 7 Indeed, [a]sking jurors to determine liability based on different standards in a single case is virtually certain to sow confusion. 8 Moreover, because the decision weakens Title VII s prohibition against retaliation, employees will be less willing to confront discrimination in the workplace for fear of the retaliatory efforts of their employers. 9 Title VII s prohibition against status-based discrimination depends in large part on employees policing their employers, and, thus, without their participation, Title VII s overall scheme will suffer. 10 In light of these important adverse effects, Congress must act. Indeed, as Justice Ginsburg noted in her dissent in Nassar, the Supreme Court s misguided judgment in Nassar should prompt yet another Civil Rights Restoration Act. 11 Part I of this Note will discuss the applicable sections of Title VII, as well as Supreme Court decisions interpreting and broadening antiretaliation provisions. Part II will analyze the Supreme Court s decision in Price Waterhouse v. Hopkins, the Court s first major decision regarding causation standards in mixed-motive cases under Title VII. Part III will then discuss the Civil Rights Act of 1991 and its amendments to Title VII, as well as lower courts decisions regarding the applicability of Price Waterhouse and the 1991 Act to Title VII retaliation claims. Part IV will then analyze Gross v. FBL Financial Services, Inc., a key turning point in the Court s jurisprudence regarding causation standards. Part V will provide a detailed analysis of University of Texas Southwestern Medical Center v. Nassar, the Supreme Court s most recent decision regarding a motivating-factor standard in Title VII retaliation claims. Part VI will provide a critique of the Court s decision in Nassar. Finally, Part VII will propose that Congress amend Title VII in light of the Court s decision. 7. See Nassar, 133 S. Ct. at 2546 (Ginsburg, J., dissenting). 8. Id. 9. See infra Part VI.C. 10. See infra Part VI.C. 11. Nassar, 133 S. Ct. at 2547 (Ginsburg, J., dissenting). Justice Ginsburg s suggestion of a Civil Rights Restoration Act refers to the 1991 Civil Rights Act, a set of amendments to Title VII, and other statutes Congress enacted in response to Supreme Court decisions which reduced the protections afforded to individuals under those statutes. See also infra Part III.

2015] UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER V. NASSAR 899 I. TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 Title VII of the Civil Rights Act of 1964 (Title VII) makes it an unlawful employment practice for an employer... to discriminate against any individual... because of such individual s race, color, religion, sex, or national origin. 12 This provision prohibits status-based discrimination, the first of two categories of wrongful employer conduct condemned by Title VII. 13 The second category of wrongful employer conduct prohibited by Title VII is employer retaliation against an employee who complains of discrimination in the workplace. 14 Title VII s prohibition against retaliation provides that an employer commits an unlawful employment practice when it discriminate[s] against any individual... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter. 15 Thus, while status-based discrimination is direct discrimination based on an individual s protected status, retaliation is discrimination for complaining about statusbased discrimination. 16 Prohibitions against retaliation are necessary to reinforce prohibitions against status-based discrimination; 17 indeed, [t]he realities of retaliation in 12. 42 U.S.C. 2000e-2(a)(1) (2) (2006). The full language of the provision is as follows: It shall be an unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual s race, color, religion, sex, or national origin. Id. 13. See Nassar, 133 S. Ct. at 2522. 14. Id. 15. 42 U.S.C. 2000e-3(a). The exact language of this provision is as follows: It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labormanagement committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter. Id. 16. Compare 42 U.S.C. 2000e-2(a)(1) (2), with 42 U.S.C. 2000e-3(a). 17. Individuals find it difficult to acknowledge that they have been discriminated against; once they overcome that hurdle and recognize the discrimination, they then struggle with

900 SAINT LOUIS UNIVERSITY LAW JOURNAL [Vol. 59:897 response to claiming discrimination necessitate strong legal protection from retaliation if the law is to provide meaningful nondiscrimination guarantees. 18 Even the Supreme Court has noted the importance of antiretaliation provisions: Title VII depends for its enforcement upon the cooperation of employees who are willing to file complaints and act as witnesses. Plainly, effective enforcement could thus only be expected if employees felt free to approach officials with their grievances. Interpreting the antiretaliation provision to provide broad protection from retaliation helps ensure the cooperation upon which accomplishment of the Act s primary objective depends. 19 Many Supreme Court decisions have in fact demonstrated the Supreme Court s willingness to interpret Title VII s prohibition against retaliation in a way that strengthens the prohibition against status-based discrimination. 20 For example, in Burlington Northern and Santa Fe Railway Co. v. White, the Supreme Court held that the scope of the antiretaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm. 21 In that case, after the employee complained about workplace discrimination, the employer changed the employee s job responsibilities and suspended her challenging the discrimination. One commentator has described the reluctance many individuals face in first recognizing that they have been discriminated against: As anyone who has experienced bias or prejudice knows, naming and challenging discrimination is socially and psychologically difficult. By the time retaliation intervenes to punish someone for alleging discrimination, that person has already overcome a myriad of psychological and social forces operating to suppress that claim. Research in social psychology has documented a marked reluctance among the targets of discrimination to label and confront their experiences as such.... Retaliation performs important work in institutions. One of the most palpable functions of retaliation is to suppress challenges to perceived inequality. Retaliation performs much of this work without ever actually being inflicted on the potential challenger. Decisions about whether to challenge discrimination rest on a careful balancing of the costs and benefits of doing so. Deborah L. Brake, Retaliation, 90 MINN. L. REV. 18, 25 26, 36 (2005). The fear of retaliation will be discussed in relation to Title VII s antiretaliation statute later in this Note. See infra Part VI. 18. Brake, supra note 17, at 42. 19. Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 67 (2006) (citations omitted). The Court further clarified: The antiretaliation provision seeks to secure that primary objective by preventing an employer from interfering (through retaliation) with an employee s efforts to secure or advance enforcement of the Act s basic guarantees. The substantive provision seeks to prevent injury to individuals based on who they are, i.e., their status. The antiretaliation provision seeks to prevent harm to individuals based on what they do, i.e., their conduct. Id. at 63. 20. For a more in-depth analysis of the Supreme Court s pro-plaintiff retaliation decisions, see Deborah L. Brake, Retaliation in an EEO World, 89 IND. L.J. 115 (2014). 21. Burlington, 548 U.S. at 67.

2015] UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER V. NASSAR 901 for multiple weeks without pay. 22 Some courts had required employees to demonstrate a materially adverse change in the terms and conditions of employment to succeed on a retaliation claim, but the Supreme Court determined that any materially adverse employment action could constitute retaliation as long as the action would dissuade a reasonable worker from complaining about the discrimination. 23 Moreover, in Thompson v. North American Stainless, L.P., the Supreme Court held that a third party who never complained of status-based discrimination but is the subject of retaliation after a different individual complained of status-based discrimination can maintain a retaliation claim under Title VII. 24 Furthermore, not only has the Supreme Court broadened the scope of Title VII s antiretaliation provisions, it has also shown a willingness to view retaliation as just another form of discrimination in other contexts beyond Title VII. 25 Indeed, even when statutes do not explicitly proscribe retaliation but do proscribe status-based discrimination, the Supreme Court has determined that the status-based discrimination prohibition within the statute implicitly contains a prohibition against retaliation. 26 In doing so, the Court has stated that [r]etaliation against a person because [he] has complained of... discrimination is another form of intentional... discrimination. 27 Thus, in Jackson v. Birmingham Board of Education, the Court determined that an individual could bring a retaliation claim under Title IX, even though the statute only explicitly prohibited sex discrimination. 28 Moreover, in Sullivan v. Little Hunting Park, Inc., the Court held that a plaintiff could bring a retaliation claim under 42 U.S.C. 1982, which provides that [a]ll citizens... shall have the same right... as is enjoyed by white citizens... to inherit, purchase, lease, sell, hold, and convey real and personal property. 29 In Gómez-Pérez v. Potter, the Court held the federal-sector provision of the Age Discrimination in Employment Act (ADEA), which provides that [a]ll personnel actions affecting employees or applicants for employment who are at 22. Id. at 58 59. 23. Id. at 60, 68. 24. Thompson v. N. Am. Stainless, L.P., 131 S. Ct. 863, 868 70 (2011). 25. This jurisprudence was a key argument in Justice Ginsburg s dissent in Nassar. See infra Part V. Indeed, when speculating about the outcome in Nassar, one commentator noted that the decision would boil down to whether or not a majority of the justices would follow the line of decisions that label retaliation as another form of discrimination. See Kevin Russell, Argument Preview: Proving Retaliation Under Title VII, SCOTUSBLOG (Apr. 23, 2013, 5:06 PM), http://www.scotusblog.com/2013/04/argument-preview-proving-retaliation-under-title-vii/. 26. See Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173 (2005). 27. Id. 28. Id. at 173 74. 29. Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 235 n.3, 237 (1969). Thus, a white tenant could sue under the statute for retaliation he suffered after complaining about discrimination towards his black tenant. Id. at 237.

902 SAINT LOUIS UNIVERSITY LAW JOURNAL [Vol. 59:897 least 40 years of age... shall be made free from any discrimination based on age, also prohibited retaliation. 30 And, in CBOCS West, Inc. v. Humphries, the Court determined that 42 U.S.C. 1981, which provides that [a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts... as is enjoyed by white citizens, encompassed retaliation claims. 31 Given the relatedness of Title VII s antidiscrimination and antiretaliation provisions, the extent to which the broad interpretation of retaliation strengthens the provision against status-based discrimination, and the history of Supreme Court decisions defining retaliation as another form of discrimination, one can easily understand Justice Ginsburg s observation that the ban on discrimination and the ban on retaliation against a discrimination complainant have traveled together. 32 II. DEVELOPMENT OF CAUSATION STANDARD UNDER TITLE VII: PRICE WATERHOUSE V. HOPKINS One continual point of contention under this framework has been the correct standard of causation a plaintiff must demonstrate in order to prove either status-based discrimination or retaliation when the employer considers both legitimate and illegitimate, i.e., discriminatory, reasons in making an employment decision. 33 Fundamental to understanding the history and complexity of the causation standard in these so-called mixed-motive cases is the Supreme Court s decision in Price Waterhouse v. Hopkins. 34 Indeed, Price Waterhouse may be [o]ne of the most important cases in Title VII history. 35 No analysis of the Court s decision in Nassar would be complete without fully examining the Court s reasoning in Price Waterhouse. 30. Gómez-Pérez v. Potter, 553 U.S. 474, 479 (2008) (quoting 29 U.S.C. 633a(a) (2006)) (internal quotation marks omitted). 31. CBOCS W., Inc. v. Humphries, 553 U.S. 442, 445 (2008) (quoting 42 U.S.C. 1981(a) (2006)) (internal quotation marks omitted). 32. Univ. of Tex. S.W. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2535 (2013) (Ginsburg, J., dissenting). 33. This Note will deal exclusively with the causation standards under these mixed-motive cases as opposed to pretext cases. A mixed-motive claim involves a situation where the employer has in fact considered both illegitimate and legitimate reasons for making its employment decision. A pretext claim, where the employer has not taken both illegitimate and legitimate factors into consideration, is governed by the McDonnell Douglas burden-shifting framework. See McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973). 34. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). 35. Lawrence D. Rosenthal, A Lack of Motivation, or Sound Legal Reasoning? Why Most Courts Are Not Applying Either Price Waterhouse s or the 1991 Civil Rights Act s Motivating- Factor Analysis to Title VII Retaliation Claims in a Post-Gross World (But Should), 64 ALA. L. REV. 1067, 1075 (2013). Not only did this case address burden shifting, gender stereotyping,

2015] UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER V. NASSAR 903 In Price, a female employee at an accounting firm sued her employer for sex discrimination when the firm refused to admit her as a partner. 36 While there were clear signs that partners at the firm reacted negatively to [the employee s] personality because she was a woman, 37 the employer also introduced evidence of her lack of interpersonal skills. 38 The trial judge concluded that even though the employer legitimately considered her lack of interpersonal skills in its decision to deny her partner status, the trial judge held that [the employer] had unlawfully discriminated against [her] on the basis of sex by consciously giving credence and effect to partners comments that resulted from sex stereotyping. 39 Moreover, the judge found that because the employer had not demonstrated that it would have denied her partner status regardless of the discrimination, the employer could not avoid equitable relief. 40 On appeal, the Court of Appeals for the D.C. Circuit affirmed the district court s conclusion but determined that an employer could outright avoid Title VII liability if it proved by clear and convincing evidence, that it would have made the same decision in the absence of discrimination. 41 The Supreme Court, recognizing a split among the circuits, granted certiorari in the case to decide, in part, the proper standard of causation when an employer s adverse employment decision resulted from a mixture of legitimate and illegitimate motives. 42 Doing so required the Court to interpret the meaning of the words because of in Title VII s provision against direct evidence, and the meaning of because of, it was also one of several cases that led to Congress s passing of the 1991 Act. Id. (citations omitted). 36. Price Waterhouse, 490 U.S. at 231 32. 37. Id. at 235 ( One partner described her as macho ; another suggested that she overcompensated for being a woman ; a third advised her to take a course at charm school. Several partners criticized her use of profanity; in response, one partner suggested that those partners objected to her swearing only because it s a lady using foul language.... [I]n order to improve her chances for partnership, [one male partner] advised, [the female employee] should walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry. (citations omitted)). 38. Id. at 236. 39. Id. at 237. 40. Id. 41. Price Waterhouse, 490 U.S. at 237. Thus, while the district court found that an employer could avoid only equitable relief by demonstrating by clear and convincing evidence that it would have taken the same employment decision regardless of the discrimination, the D.C. Circuit determined that the employer could avoid liability by making that same showing. Id. 42. Id. at 232. The Supreme Court described the split in the lower courts that preceded its decision in Price Waterhouse. See id. at 238 n.2. For a more in-depth discussion of the Title VII causation standards before the Supreme Court decided Price Waterhouse, see Mark S. Brodin, The Standard of Causation in the Mixed-Motive Title VII Action: A Social Policy Perspective, 82 COLUM. L. REV. 292 (1982).

904 SAINT LOUIS UNIVERSITY LAW JOURNAL [Vol. 59:897 discrimination. 43 Although there was no majority opinion, six of the Justices did agree that an employer acts because of a protected status when that status is at least a motivating or substantial factor in taking an adverse employment action. 44 Justice Brennan, writing for a plurality of the justices, began his analysis by laying out the exact language of the statute and stated: We take these words to mean that gender must be irrelevant to employment decisions. To construe the words because of as colloquial shorthand for but-for causation,... is to misunderstand them. 45 Moreover, Justice Brennan decisively determined that because of did not mean solely because of, citing Congress s rejection of an amendment that would have placed the word solely before the words because of in the statute. 46 This was demonstrative evidence in his eyes that Congress intended to eliminate employment decisions in which an illegitimate, discriminatory motive plays a part in an employment decision, even if it is not the sole reason for the decision. 47 Thus, he concluded that [w]hen... an employer considers both gender and legitimate factors at the time of making a decision, that decision was because of sex. 48 The Court did not end the analysis there, however. The Court went on to establish a burden-shifting framework, opening up the door for employers to claim an affirmative defense even if an employee could show that a discriminatory motive played a part in the employer s decision. 49 Thus, if the employee demonstrated that the prohibited trait was a motivating factor in the employment decision, the burden then shifted to the employer to demonstrate that it would have taken the same employment action in the absence of the 43. Price Waterhouse, 490 U.S. at 240. For the full language of the statute, see supra note 12. 44. Price Waterhouse, 490 U.S. at 248 (plurality opinion); id. at 259 (White, J., concurring); id. at 276 (O Connor, J., concurring). 45. Price Waterhouse, 490 U.S. at 240 (plurality opinion). 46. Id. at 241 n.7. 47. Id. at 241. In response to the dissent s criticism of Brennan s construction of the words because of, he stated: We need not leave our common sense at the doorstep when we interpret a statute. It is difficult for us to imagine that, in the simple words because of, Congress meant to obligate a plaintiff to identify the precise causal role played by legitimate and illegitimate motivations in the employment decision she challenges. We conclude, instead, that Congress meant to obligate her to prove that the employer relied upon sex-based considerations in coming to its decision. Id. at 241 42. 48. Id. at 241. 49. Id. at 242.

2015] UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER V. NASSAR 905 discrimination. 50 If the employer could make this showing, it would escape liability. 51 The Supreme Court s decision in Price Waterhouse, at least at first glance, did grant some protection to employees by allowing them to only demonstrate that their protected status was a motivating factor in the employer s decision. 52 However, Price Waterhouse also allowed the employer to escape all liability if it could demonstrate that it would have made the same decision regardless of the discriminatory motive. 53 In the eyes of Congress, such a decision unduly restricted the protections guaranteed under Title VII. 54 III. CONGRESS REACTS: CIVIL RIGHTS ACT OF 1991 BUT PRICE WATERHOUSE SURVIVES A. Congress Extends Protection under the Civil Rights Act of 1991 In response to Price Waterhouse and a number of other Supreme Court decisions that sharply cut back on the scope and effectiveness of antidiscrimination laws, 55 Congress enacted the Civil Rights Act of 1991 (the 1991 Act). 56 Indeed, the purpose of the 1991 Act was to provide additional protections against unlawful discrimination in employment. 57 The 1991 Act codified part of the framework of Price Waterhouse and discarded the rest. 58 Specifically, the legislation added a new subsection, 2000e-2(m), to the 50. Price Waterhouse, 490 U.S. at 258 (White, J., concurring). 51. Id. Justice Brennan stated the new standard as follows: We hold that when a plaintiff in a Title VII case proves that her gender played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff s gender into account. Id. 52. Id. 53. Id. 54. H.R. REP. NO. 102-40, pt. 2, at 2 4 (1991). 55. Id. Some of the other decisions overruled by the 1991 Act included Patterson v. McLean Credit Union, 491 U.S. 164, 177 (1989) (holding that 42 U.S.C. Section 1981 guaranteeing all persons the same right... to make and enforce contracts... as is enjoyed by white citizens does not prohibit racial harassment on the job and other forms of race discrimination occurring after the formation of a contract), and Library of Congress v. Shaw, 478 U.S. 310, 319 (1986) (holding that a party prevailing in a Title VII suit against the Government was not entitled to interest on attorney s fees because the provision permitting attorney s fees did not expressly waive sovereign immunity). See id. 56. See Civil Rights Act of 1991, Pub. L. No. 102 166, 105 Stat. 1071. For a more in-depth discussion on the Civil Rights Act of 1991, see Michael D. Moberly & Linda H. Miles, The Impact of The Civil Rights Act of 1991 on Individual Title VII Liability, 18 OKLA. CITY. U. L. REV. 475 (1993). 57. 2, 105 Stat. at 1071. 58. See 42 U.S.C. 2000e-2(m), -5(g)(2).

906 SAINT LOUIS UNIVERSITY LAW JOURNAL [Vol. 59:897 section governing status-based discrimination. 59 The new provision stated: [A]n unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice. 60 Therefore, the employee need only demonstrate that the prohibited status was a motivating factor in the employment decision. 61 Although the amendment saved the motivating-factor standard, the legislation removed the ability of the employer to escape liability by demonstrating that it would have made the employment decision regardless of any discriminatory animus. 62 Instead, Congress enacted 2000e-5(g)(2), which provides: On a claim in which an individual proves a violation under section 2000e 2(m) of this title and [the employer] demonstrates that [it] would have taken the same action in the absence of the impermissible motivating factor, the court... may grant declaratory relief, injunctive relief... and [limited] attorney s fees and costs... and... shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment. 63 Thus, under both Price Waterhouse and the 1991 Act s amendments, an employee claiming discrimination under Title VII must only demonstrate that the employee s protected status was a motivating factor in the employer s adverse employment decision. 64 However, while an employer could avoid liability by demonstrating that it would have made the same decision regardless of the discrimination under Price Waterhouse, the 1991 Act s amendments provided that an employer s demonstration that it would have made the same decision absent a discriminatory motive would only lessen damages. 65 Key to the Supreme Court s ultimate decision in Nassar was Congress s decision to codify, at least in part, the decision in Price Waterhouse by adding the motivating-factor standards to the subsection of Title VII governing statusbased discrimination claims and not in a subsection governing Title VII retaliation claims or a neutral Title VII subsection governing both types of Title VII claims. 59. Id. 2000e-2(m). The prohibition against retaliation is in id. 2000e-3. 60. Id. 2000e-2(m). 61. See id. 62. See id. 2000e-5(g)(2). 63. 42 U.S.C. 2000e-5(g)(2). 64. Price Waterhouse v. Hopkins, 490 U.S. 228, 241 42 (1989); 42 U.S.C. 2000e-2(m). 65. Compare Price Waterhouse, 490 U.S. at 242, with 42 U.S.C. 2000e-5(g)(2).

2015] UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER V. NASSAR 907 B. Causation Standard for Retaliation Claims: Price Waterhouse or the 1991 Act? After Congress enacted the 1991 Act, courts disagreed regarding which standard governed Title VII retaliation claims. 66 Some courts applied the 1991 Act s motivating-factor framework, while other courts determined that the 1991 Act did not apply and instead used the Price Waterhouse framework. The majority of courts continued to apply the Price Waterhouse framework to Title VII retaliation claims. For example, in Tanca v. Nordberg, the First Circuit rejected the employee s contention that the 1991 Act s motivating-factor framework applied to Title VII retaliation claims, observing that the 1991 Act s motivating-factor provision did not explicitly refer to retaliation claims. 67 Thus, the court determined that Price Waterhouse still applied to Title VII retaliation claims. 68 Some courts, however, did begin to apply the 1991 Act s motivating-factor framework to Title VII retaliation claims, though these cases lacked a clear analysis of why the 1991 Act applied. For example, the Seventh Circuit appeared to suggest in Veprinsky v. Fluor Daniel, Inc. that the 1991 Act s motivating-framework governed Title VII retaliation claims, but the court never engaged in a thorough analysis regarding the 1991 Act s applicability versus Price Waterhouse s applicability. 69 IV. CAUSATION REVISITED: GROSS V. FBL FINANCIAL SERVICES, INC. A. Gross v. FBL Financial Services, Inc. and the Resurgence of But-For Causation The Supreme Court, in deciding Gross v. FBL Financial Services, Inc., 70 added another wrinkle to the already confusing area of causation standards in retaliation claims. In a 5 4 decision, the Court held that plaintiffs claiming discrimination under the Age Discrimination in Employment Act of 1967 (ADEA) must show that age was the but-for cause of the employer s adverse employment action. 71 66. For a more in-depth analysis of the circuit split following the 1991 Act, see Rosenthal, supra note 35, at 1069 73. 67. Tanca v. Nordberg, 98 F.3d 680, 680 82 (1st Cir. 1996). 68. Id. at 683. 69. Veprinsky v. Fluor Daniel, Inc., 87 F.3d 881, 892 94 (7th Cir. 1996). 70. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009). 71. Id. at 169 70, 177. The relevant provision of the ADEA provides: It shall be unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual s age. 29 U.S.C. 623(a)(1) (2006).

908 SAINT LOUIS UNIVERSITY LAW JOURNAL [Vol. 59:897 In Gross, the plaintiff-employee had worked for the defendant-employer for about thirty years when he was given the position of claims administrator in 2001. 72 Two years later, when the employee was fifty-four years old, the company restructured the employee s job and transferred many of his job responsibilities to a newly created position held by a younger employee. 73 The employer asserted various legitimate reasons for the restructuring of the employee s position, 74 but the employee, viewing his new position as a demotion, filed suit against the employer for violating the ADEA. 75 At the close of trial, the trial court instructed the jury to find for the employee if he had demonstrated that his age had been a motivating factor in the employer s decision to demote him. 76 The trial court further instructed, however, that the jury must find for the employer if it had proven that it would have made the same decision regardless of the employee s age. 77 The jury returned a verdict for the employee, and the employer appealed. 78 On appeal, the Court of Appeals for the Eighth Circuit, construing the appropriate standards of Price Waterhouse, found that the trial court had not given the proper jury instructions. 79 Specifically, the Eighth Circuit determined that under Price Waterhouse, the employee must present direct evidence demonstrating that his age actually motivated the adverse employment 72. Gross, 557 U.S. at 170. 73. Id. 74. Id. At trial, the employer defended its position by providing evidence that the employee s transfer to the new position was part of an overall corporate restructuring and that the new position was better suited to the employee s skills. Id. 75. Id. Although Gross dealt with a discrimination claim under the ADEA and not Title VII, courts deciding cases involving retaliation claims under Title VII after Gross was decided used Gross to establish a but-for causation standard for the retaliation claims as well. See infra Part IV- B. Moreover, the Supreme Court used the reasoning in Gross when deciding Nassar. See infra Part V. 76. Id. at 170 71. 77. Gross, 557 U.S. at 171. The instructions, in part, were as follows: Your verdict must be for plaintiff if all the following elements have been proved by the preponderance of the evidence:... [The] plaintiff s age was a motivating factor in defendant s decision to demote plaintiff. However, your verdict must be for defendant... if it has been proved by the preponderance of the evidence that defendant would have demoted plaintiff regardless of his age.... As used in these instructions, plaintiff s age was a motivating factor, if plaintiff s age played a part or a role in the defendant s decision to demote plaintiff. However, plaintiff s age need not have been the only reason for defendant s decision to demote plaintiff. Id. at 192 (Breyer, J., dissenting) (internal quotation marks omitted). To compare this instruction with the standards in Price Waterhouse, see Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989). 78. Gross, 557 U.S. at 171 (majority opinion). 79. Id.

2015] UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER V. NASSAR 909 decision. 80 Absent such a showing, the burden never shifted to the employer to demonstrate that it would have taken the same decision regardless of the discrimination. 81 Thus, because the trial court s instructions allowed the burden to shift to the employer upon the employee presenting any category of evidence showing his age was a motivating factor, the trial improperly construed Price Waterhouse. 82 Moreover, because the employee conceded that he had not presented any direct evidence, the Eighth Circuit determined that the trial court should not have even given the mixed-motive instruction but should have instead instructed the jury only to determine whether [the employee] had carried his burden of prov[ing] that age was the determining factor in FBL s employment action. 83 The employee appealed, and the Supreme Court granted certiorari. 84 Although the Court acknowledged that [t]he question presented by the petitioner in this case is whether a plaintiff must present direct evidence of age discrimination in order to obtain a mixed-motives jury instruction in a suit brought under the [ADEA], 85 the Court instead decided to answer whether a mixed-motive instruction is even allowed in ADEA discrimination cases, noting that it could not answer the former question without having answered the latter question. 86 The Court began by stating that Title VII is materially different with respect to the relevant burden of persuasion, and, therefore, 80. Id. at 172. 81. Id. 82. Id. 83. Gross, 557 U.S. at 172 73 (citation omitted). 84. Id. at 173. 85. Id. at 169 70. 86. Id. at 173. Although the parties did not specifically frame the question to include this threshold inquiry, [t]he statement of any question presented is deemed to comprise every subsidiary question fairly included therein. Id. at 173 n.1 (citation omitted). The dissent was particularly disturbed by the majority s inattention to prudential Court practices in even answering the mixed-motive instruction question, stating: The Court asks whether a mixed-motives instruction is ever appropriate in an ADEA case. As it acknowledges, this was not the question we granted certiorari to decide. Instead, the question arose for the first time in respondent s brief, which asked us to overrule Price Waterhouse with respect to its application to the ADEA. In the usual course, this Court would not entertain such a request raised only in a merits brief: We would normally expect notice of an intent to make so far-reaching an argument in the respondent s opposition to a petition for certiorari, thereby assuring adequate preparation time for those likely affected and wishing to participate. Yet the Court is unconcerned that the question it chooses to answer has not been briefed by the parties or interested amici curiae. Its failure to consider the views of the United States, which represents the agency charged with administering the ADEA, is especially irresponsible. Id. at 181 (Stevens, J., dissenting) (citations omitted).

910 SAINT LOUIS UNIVERSITY LAW JOURNAL [Vol. 59:897 decisions that construe Title VII, including Price Waterhouse, do not control its construction of the ADEA. 87 The Court continued: This Court has never held that this burden-shifting framework applies to ADEA claims. And, we decline to do so now. When conducting statutory interpretation, we must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination. Unlike Title VII, the ADEA s text does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor. 88 Moreover, the Court noted that while Congress amended Title VII to provide for a motivating-factor standard, it neglected to add a similar provision to the ADEA, even though it chose to amend the ADEA in other ways at the same time. 89 The Court determined that it could not ignore Congress s decision to not add the motivating-factor provision to the ADEA, reasoning, When Congress amends one statutory provision but not another, it is presumed to have acted intentionally. 90 Having established that cases construing Title VII did not apply in this context, the Court turned to the actual text of the ADEA and, as it did in Price Waterhouse, narrowed in on the meaning of the words because of. 91 This time, however, after examining dictionary definitions of the word because, the Court determined that because of means [b]y reason of; on account of, and, therefore, that the ordinary meaning of the ADEA s requirement that an employer took adverse action because of age is that age was the reason that the employer decided to act. 92 Given the ordinary meaning of the ADEA s provision, the Court concluded that the plaintiff must establish that age was the but-for cause of the employer s adverse action in order to prevail on an ADEA discrimination claim. 93 The Court concluded by rejecting the employee s argument that Price Waterhouse controlled the Court s interpretation, arguing that the Price 87. Id. at 173 (majority opinion). 88. Gross, 557 U.S. at 174 (citing Fed. Express Corp. v. Holowecki, 552 U.S. 389, 393 (2008)). 89. Id. 90. Id. 91. Id. at 176. 92. Id. Justice Stevens criticized the majority s new interpretation: We were no doubt aware that dictionaries define because of as by reason of or on account of. Contrary to the majority s bald assertion, however, this does not establish that the term denotes but-for causation. The dictionaries the Court cites do not, for instance, define because of as solely by reason of or exclusively on account of. In Price Waterhouse, we recognized that the words because of do not mean solely because of, and we held that the inquiry commanded by the words of the statute was whether gender was a motivating factor in the employment decision. Id. at 183 n.4 (Stevens, J., dissenting) (citations omitted). 93. Gross, 557 U.S. at 177 (majority opinion).

2015] UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER V. NASSAR 911 Waterhouse approach was difficult to apply and may not even be doctrinally sound. 94 Thus, the Court concluded: We hold that a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the butfor cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision. 95 Justice Stevens, in his dissent, focused his argument on the Court s analysis in Price Waterhouse, noting that it construed the identical because of language of Title VII to imply that the text proscribes adverse employment actions motived in whole or in part by the age of the employee. 96 He further chastised the majority for interpreting the words because of under the ADEA as colloquial shorthand for but-for causation, an interpretation the Court in Price Waterhouse had squarely rejected. 97 Moreover, Justice Stevens rejected the notion that cases construing Title VII had no weight to the case at hand, stating, The relevant language in the two statutes is identical, and we have long recognized that our interpretations of Title VII s language apply with equal force in the context of age discrimination, for the substantive provisions of the ADEA were derived in haec verba from Title VII. 98 Justice Stevens also reasoned that Congress s reaction to Price Waterhouse, in enacting the 1991 Act, actually supported the notion that because of should not be interpreted to mean but-for causation, noting that Congress actually codified Price Waterhouse s motivating-factor standard and rejected the but-for causation standard advocated by Price Waterhouse s dissent. 99 Therefore, according to Justice Stevens, given that courts have consistently held that Title VII cases apply to cases involving the ADEA, even if the motivating-factor standard within the 1991 Act s amendments to Title 94. Id. at 178 79. Interestingly, in his dissent, Justice Breyer argued that the but-for causation standard was not free of its own defects in the employment context, noting: In a case where we characterize an employer s actions as having been taken out of multiple motives... to apply but-for causation is to engage in a hypothetical inquiry about what would have happened if the employer s thoughts and other circumstances had been different. Id. at 191 (Breyer, J., dissenting). For a more in depth discussion of Justice Breyer s critique of the but-for standard, see infra Part VI. 95. Id. at 180 (majority opinion). 96. Id. at 182 (Stevens, J., dissenting). 97. Id. at 183. 98. Gross, 557 U.S. at 183 (Stevens, J., dissenting) (internal quotation marks omitted) (citing Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985)). 99. Id. at 185. Justice Steven s later stated, The Court s resurrection of the but-for causation standard is unwarranted. Price Waterhouse repudiated that standard 20 years ago, and Congress response to our decision further militates against the crabbed interpretation the Court adopts today. Id. at 187.

912 SAINT LOUIS UNIVERSITY LAW JOURNAL [Vol. 59:897 VII may not apply to the ADEA, 100 the Price Waterhouse interpretation of because of should still govern. 101 B. Causation in Title VII Retaliation Claims After Gross: Gross, Price Waterhouse, or the 1991 Act? The Gross decision was met with some contempt. 102 In fact, a bill was introduced in Congress to overturn Gross. 103 The bill, Protecting Older Workers Against Discrimination Act, was never enacted, 104 however, and courts were left to interpret how far-reaching of an effect the majority s analysis in Gross would have on retaliation claims under Title VII. Although Gross construed the ADEA, many courts began to apply Gross in the Title VII context. In fact, the majority of courts faced with Title VII retaliation claims used Gross to hold that Title VII required the employee to demonstrate that his protected activity was the but-for cause of the employer s adverse employment action. 105 The minority approach taken by the courts after Gross was decided was to apply Price Waterhouse to retaliation claims. For example, in Smith v. Xerox Corporation, the Fifth Circuit rejected the contention that Gross required the court to adopt a but-for causation standard for Title VII retaliation claims. 106 The Fifth Circuit argued that Gross did not apply because it involved the ADEA and not Title VII. 107 Thus, the court relied on Price Waterhouse to determine that the employee only had to show that her protected activity was a 100. The dissent noted that there may actually be good reason to think that the 1991 amendments to Title VII should apply to the ADEA as well: There is, however, some evidence that Congress intended the 1991 mixed-motives amendments to apply to the ADEA as well. See H.R. Rep., pt. 2, at 4 (noting that a number of other laws banning discrimination, including... the Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621, et seq., are modeled after and have been interpreted in a manner consistent with Title VII, and that these other laws modeled after Title VII [should] be interpreted consistently in a manner consistent with Title VII as amended by this Act, including the mixed-motives provisions). Id. at 186 n.6. 101. Id. at 186 87. 102. See, e.g., Michael C. Harper, The Causation Standard in Federal Employment Law Gross v. FBL Financial Services, Inc., and the Unfulfilled Promise of the Civil Rights Act of 1991, 58 BUFF. L. REV. 69, 69 (2010) (responding to the Gross decision). 103. See Andrew Kenny, The Meaning of Because in Employment Discrimination Law: Causation in Title VII Retaliation Cases After Gross, 78 U. CHI. L. REV. 1031, 1032 33 (2011) (discussing the proposed amendment). 104. Id. 105. For a discussion of the cases that used Gross to establish a but-for causation standard for Title VII retaliation claims, see Rosenthal, supra note 35, at 1100 05. 106. Smith v. Xerox Corp., 602 F.3d 320, 328 (5th Cir. 2010). Nassar also came out of the Fifth Circuit. 107. Id. at 329.

2015] UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER V. NASSAR 913 motivating factor in the employer s adverse employment action. 108 If the employee made that showing, the Fifth Circuit determined, the employer could then avoid liability by demonstrating that it would have made the same decision absent the retaliatory motive. 109 Judge Jolly dissented, arguing that Gross controlled and that the proper standard for retaliation claims was the but-for causation. 110 Only three years after Smith was decided, the Supreme Court granted certiorari in Nassar to resolve the split and decide the proper standard of causation for Title VII retaliation claims. V. UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER V. NASSAR A. Facts of University of Texas Southwestern Medical Center v. Nassar The University of Texas Southwestern Medical Center ( University ) is an academic institution which specializes in medical education. 111 In an effort to give its students hands-on experience at healthcare facilities, the University had affiliated itself with a number of hospitals, including Parkland Memorial Hospital ( Hospital ). 112 The affiliation agreement between the University and the Hospital provided that the Hospital would offer the University s faculty members empty staff physician positions at the Hospital. 113 Under this framework, Naiel Nassar, a doctor of Middle Eastern descent, was hired to work both as an assistant professor at the University and as a staff physician in the infectious disease division of the Hospital. 114 In 2004, Dr. Beth Levine became Nassar s ultimate supervisor when she was hired as the University s Chief of Infectious Disease Medicine. 115 After being hired, Levine began criticizing Nassar s billing practices and productivity and made comments to the effect that Middle Easterners are 108. Id. at 330. 109. Id. at 333. 110. Id. at 336 (Jolly, J., dissenting). Judge Jolly stated: [T]he majority effectively creates an unnecessary split in the circuits by failing properly to apply the Supreme Court s ruling in Gross v. FBL Financial Services, Inc. As the Seventh Circuit has correctly reasoned, without statutory language indicating otherwise, the mixed-motive analysis is no longer applicable outside of Title VII discrimination, and consequently does not apply to this retaliation case. Id. 111. Univ. of Tex. S.W. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2523 (2013). 112. Id. 113. Id. 114. Id. Nassar was first employed in 1995 but resigned his positions in 1998 to attend more schooling. Id. In 2001, he was rehired to work again as both a faculty member and staff physician. Id. 115. Id.